Mulcreevy v. Minister for Environment, Heritage and Local Government & Ors. Pays/Territoire Irlande Type de cour Nationale - cour supérieure Date Jan 27, 2004 Source UNEP, InforMEA Nom du tribunal Supreme Court Juge Keane CJ, Hardiman, McCracken. Numéro de référence [2004] IESC 5 Langue Anglais Sujet Questions juridiques, Terre et sols Mot clé Aire protégée Patrimoine culturel Planification territoriale Résumé The present judgment of the Supreme Court concerns an interlocutory motion for an injunction, related to the construction of the South Eastern Motorway which route traverses part of Carrickmines Castle, County Dublin, a national monument within the meaning of the National Monument Acts 1930 to 1994. The Defendants were constructing a motorway partially on the site of some archeological remains of importance, and the appellant took the proceedings against the approval by the Minister for the Environment, Mr Cullen, for the partial destruction of the castle site to make way for a major roundabout for the M50. The Supreme court granted his appeal after the High Court refused him leave to take judicial review proceedings. The Supreme Court granted an injunction banning all work at the archaeological site until a judicial review was completed. In doing so, it overturned a High Court Order which rejected Mr Mulcreevy's request to appeal against the controversial plans. However, Chief Justice stressed the appeal must be brought before the High Court as a matter of urgency to minimise the delay. While the applicant accepted hat he had no private interest in these proceedings, it is not suggested that he had brought them for any other reason than to ensure that the national monument is not damaged irreparably, as he claimed it would be, by the local authority carrying out the motorway project without the necessary statutory consents, approvals and licenses. The Supreme Court recognised the applicant had locus standi where he had shown a high probability of success if his application went ahead and had established a "substantial" ground for a further legal challenge to the roundabout construction at Carrickmines Castle. The Supreme Court permitted the application for judicial review. The judicial review will centre on whether a 1996 Order, employed by Mr Cullen, went beyond the power granted under the original legislative act. Under the original heritage legislation (s.14 of the National Monuments Act 1930) before works could proceed, the joint consent of the Environment Minister, as successor of the Commissioners of Public Works, and the local authority were needed. Thus, the consent of two distinct and independent statutory bodies with different remits was required. The result of the amendment (s.15 of the National Monuments Act (Amendment) Act 1994) was to require the consent of a third statutory body, again with a different statutory remit, i.e. the Minister for Arts, Culture and the Gaeltacht hereafter the Arts Minister. The Minister for the Environment and the local authority could consent only if it were in the interests of archaeology to do so. In any other case, their consent was ineffective unless it was approved by the Arts Minister who in turn needed the approval of both houses of the Oireachtas if his consent was not grounded on public health or safety grounds. After the relevant Transfer of Functions Orders, the Arts Minister was required to give the joint consent with the local authority and the approval of the joint decision. The effect of the Transfer of Functions Orders purported to replace the hierarchy of controls requiring the consent or approval of three entirely distinct and independent statutory bodies with different remits by a different system of control requiring the approval or consent of two bodies only. The apex Court held that where the scheme of primary legislation provides for a role in a decision making process for two or more Ministers or agencies, a Transfer of Functions Order cannot abrogate the role of two or more Ministers or agencies exercising independent statutory functions. Therefore, it is not open to amend a legislative scheme in primary legislation by means of a Transfer of Functions Order. Following the present judgment, the High Court held that the essential point is that subordinate legislation cannot amend primary legislation. Accordingly, it made a declaration that the Heritage (Transfer of Functions of Commissioners of Public Works) Order 1996 (SI 61 of 1966) is ultra vires and invalid to the extent that it purports to transfer the consent function of the Commissioners of Public Works created by section 14 of the National Monuments Acts 1930-1994 to the Minister for Arts, Culture and the Gaeltacht.